IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40227

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

JOSE PRISCILIANO GRACIA-CANTU, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before KING, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:

We WITHDRAW our prior panel opinion and SUBSTITUTE this opinion.

Jose Prisciliano Gracia-Cantu appeals the district court’s determination that a 

conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) for “Assault –

Family Violence” qualifies as a crime of violence under 18 U.S.C. § 16, and is 

therefore an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(F) and 

U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our recent en banc decision in 

United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), we 

hold that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) falls 

within the definition of a crime of violence under 18 U.S.C. § 16(a). We 

therefore AFFIRM Gracia-Cantu’s sentence.

United States Court of Appeals

Fifth Circuit

FILED

April 2, 2019

Lyle W. Cayce

Clerk

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No. 15-40227

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Section 16(a) defines a “crime of violence” as “an offense that has as an 

element the use, attempted use, or threatened use of physical force against the 

person or property of another.” 18 U.S.C. § 16(a). We recently explained en 

banc that this definition does not include a “directness-of-force requirement.” 

Reyes-Contreras, 910 F.3d at 183. Even indirect applications of force will do. 

Instead, all that this definition requires is that the statute of prior conviction 

criminalize only conduct that: (1) is committed intentionally, knowingly, or 

recklessly; and (2) “employs a force capable of causing physical pain or injury”; 

(3) against the person of another. Id. at 183, 185; see also United States v. De 

La Rosa, No. 17-10487, 2019 WL 177958, at *3 (5th Cir. Jan. 11, 2019) 

(unpublished).

Texas “Assault – Family Violence” fits the bill. First, the statute requires 

that the offense be committed “intentionally, knowingly, or recklessly.” Tex. 

Penal Code § 22.01(a)(1). Second, the statute requires that the defendant 

“cause[] bodily injury,” id., which is defined as “physical pain, illness, or any 

impairment of physical condition,” id. § 1.07(a)(8). Third, the statute requires 

that the injury be caused to “another,” id. § 22.01(a)(2)—specifically, against a 

family member, as defined by certain provisions of the Texas Family Code, id.

§ 22.01(b)(2). This statute therefore meets the definition of a “crime of 

violence” under § 16(a). See also United States v. Gomez, 917 F.3d 332, 334 

(5th Cir. 2019) (holding that aggravated assault—which shares the same 

predicate offense, simple assault, as the statute in the instant case—is a “crime 

of violence” under § 16(a)); De La Rosa, 2019 WL 177958, at *3 (holding that 

assault against a peace officer, which also shares simple assault as a predicate 

offense, is a “crime of violence” under § 16(a)).

Post-Reyes-Contreras, Gracia-Cantu has only two remaining arguments. 

We reject both. First, he asserts that the degree of force required by the Texas

statute—reaching to “any impairment of physical condition,” Tex. Penal Code 

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§ 1.07(a)(8), even minor injuries—is too minimal to constitute a crime of 

violence. See Curtis Johnson v. United States, 559 U.S. 133, 140 (2010) (“[I]n 

the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ 

means violent force—that is, force capable of causing physical pain or injury to 

another person.”) (emphasis in original). But Gracia-Cantu must show more 

than a “theoretical possibility” that the statute could be enforced and applied 

this way; he must show a “realistic probability . . . that the State would apply 

its statute to conduct that falls outside the [use-of-force clause].” ReyesContreras, 910 F.3d at 184 & n.35. In the absence of “supporting state case 

law, interpreting a state statute’s text alone is simply not enough to establish 

the necessary ‘realistic probability.’” United States v. Castillo-Rivera, 853 F.3d 

218, 223 (5th Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 

193 (2007)).

Gracia-Cantu fails to provide that case law. The state-court cases he 

relies on—two finding bodily injury when defendants knowingly transmitted 

HIV1 and one finding bodily injury when a defendant knowingly injected 

bleach through an IV into a victim’s bloodstream2—involve force “capable of 

causing physical pain or injury” to the degree contemplated by Curtis Johnson. 

Reyes-Contreras, 910 F.3d at 185. These instruments—HIV and intravenous 

bleach—are no different from the “deadly instruments” in Mr. ReyesContreras’s state-court case law: a gun, poison-laced orange juice, and a plastic 

bag. Id. Just as in Reyes-Contreras, the state-court case law that GraciaCantu relies on involves the “knowing[ ] employ[ment of] deadly instruments 

 

1 Billingsley v. State, No. 11-13-00052-CR, 2015 WL 1004364, at *1–2 (Tex. App.–

Eastland Feb. 27, 2015, pet. ref’d) (unpublished); Padieu v. State, 05-09- 00796-CR, 2010 WL 

5395656, at *1 (Tex. App.—Dallas Dec. 30, 2010, pet. ref’d) (unpublished).

2 Saenz v. State, 479 S.W.3d 939, 949–50 (Tex. App.–San Antonio 2015, pet. ref’d)).

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. . . with the understanding that those instruments were substantially likely to 

cause physical pain, injury, or . . . death.”3 Id.

Gracia-Cantu’s second remaining argument post-Reyes-Contreras is that 

applying Reyes-Contreras “retroactively” to his sentence would violate the 

Constitution’s protection against “unforeseeable judicial enlargement[s] of . . . 

criminal statute[s].” Bouie v. City of Columbia, 378 U.S. 347, 353 (1964). 

Gracia-Cantu, however, is not the first to raise this defense against the 

application of Reyes-Contreras, and our court has already rejected it. Gomez, 

919 F.3d at 33 (“Reyes-Contreras did not make previously innocent activities 

criminal. It merely reconciled our circuit precedents with the Supreme Court’s 

decision in Castleman.”).

* * *

Reyes-Contreras applies to Gracia-Cantu’s sentence and renders his 

prior conviction for Texas “Assault – Family Violence” a “crime of violence” 

under 18 U.S.C. § 16(a). Accordingly, we AFFIRM the district court’s sentence. 

 

3 Gracia-Cantu also suggests that the Texas statute criminalizes assault through the 

use of force that is non-physical altogether. For this claim, he points to an indictment of a 

defendant who sent a tweet with an animation of strobe lights designed to trigger the 

recipient’s epileptic seizures, which they did. See Indictment, State v. Rivello, Case No. F1700215-M (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Mar. 20, 2017). Even if an indictment 

alone can show a realistic probability that a state criminal statute will be interpreted a 

certain way—an issue we need not address today—this argument would fall short. In United 

States v. Castleman, the Supreme Court explained that “the knowing or intentional causation 

of bodily injury necessarily involves the use of physical force.” 572 U.S. 157, 169 (2014); see 

also Reyes-Contreras, 910 F.3d at 182 (“We hold that, as relevant here, Castleman is not 

limited to cases of domestic violence . . .”). Seizures are a form of bodily injury. Knowingly 

or intentionally causing them, therefore, necessarily involves the use of physical force.

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